Section 4
Determination of endangered, threatened or special concern status

Section 4. The director shall conduct investigations and consult with the natural heritage and endangered species advisory committee established pursuant to section five B of chapter one hundred and thirty-one in order to determine whether any species of plant or animal constitutes an endangered or threatened species or species of special concern.

Criteria for determining endangered, threatened or special concern status shall be based on biological data including, but not limited to, reproductive and population status and trends, whether the species is native or has been introduced, vulnerability, as determined by threats to the species or its habitat, specialization, as determined by unique habitat requirements; restricted distribution, as determined by limited or disjunct geographic range and rarity, as determined by a limited number of occurrences or by occurrence in limited numbers.

The director shall list endangered, threatened and special concern species and shall review said list at least once every five years for the purpose of listing or delisting species. The burden of proof for delisting species shall be on the person requesting such change in status. The establishment of said list and any proposed changes thereto shall be by regulation after a public hearing and shall be subject to the provisions of chapter thirty A.

Upon the effective date of the regulations adopted hereunder the director shall designate significant habitats of endangered or threatened species populations by regulation, after a public hearing, and subject to the provisions of chapter thirty A, on the basis of the best scientific evidence available, after taking into consideration the following criteria:

(i) the current and foreseeable threats to the population or its habitat;

(ii) the size of the population;

(iii) the potential benefits of designation to the population and to the status and welfare of the species generally; and

(iv) current and foreseeable uses of the land.

The director shall review and designate qualifying significant habitats on a yearly basis and may, from time to time, revise such designation by regulation as appropriate. The designation and revision of designation of significant habitat by the director shall constitute the adoption of regulations subject to the provisions of chapter thirty A. The location of designated significant habitat shall be marked on maps available for inspection by record owners and shall be described by metes and bounds or another adequate method which identifies the boundaries of the significant habitat.

Record owners of lands or interests in lands containing habitat to be so designated shall be notified by certified mail not less than thirty days prior to the public hearing regarding such designation. Upon the adoption of the regulation designating the significant habitat, the director shall cause a document identifying the location of each habitat so designated, together with a list of the assessed owners of such lands, to be recorded in the proper registry of deeds or, if such lands are registered, in the registry district of the land court, and shall send, by certified mail, a copy thereof to each record owner. Maps showing the location of significant habitats shall be made available to local zoning boards, planning boards and conservation commissions or, where none of the above exist, the local board of selectmen or mayor and the city council, in those communities where such habitats occur.

Local zoning boards, planning boards or conservation commissions shall notify the director, in writing, of any and all petitions, requests or applications for permits, orders or approvals regarding proposed activity within significant habitats within twenty-one days of the filing of such petitions, requests or applications.

Record owners of lands or interests in land containing significant habitat may appeal the director’s designation of such significant habitat to the secretary of the office of environmental affairs by sending, by certified mail, a notice of appeal to said secretary within twenty-one days of such designation. Said secretary shall hold a hearing on such appeal within a reasonable time, and in no case later than one hundred and twenty days from the date of such designation. Said secretary shall consider the information and testimony presented at the hearing and shall make a determination thereon within sixty days. Said secretary shall reverse the decision of the director only upon a finding that such decision was without substantial basis in fact. Upon the reversal of a decision, the director shall rescind the regulation, or a part thereof, which established such designation, as it affects the appealing record owner.

In addition to the aforementioned appeal, owners of land containing significant habitat may, within twenty-one days of designation, petition the director to consider purchasing such habitat from monies appropriated by the general court or from bond funds.

The division of fisheries and wildlife shall, after a public hearing and in accordance with the procedures set forth in chapter thirty A, adopt any regulations necessary to implement the provisions of this chapter. Said regulations shall be promulgated with the advice and assistance of a technical advisory committee to consist of nine persons to be appointed by the director; two of whom shall be university or college professors from two separate educational institutions with expertise in endangered species biology, one of whom shall be a member of a Massachusetts environmental organization; one of whom shall be a member of a nongame advisory committee established pursuant to section five B of chapter one hundred and thirty-one; one of whom shall be a member of the sporting community, one of whom shall be a representative of the utilities industry; one of whom shall be a representative of the real estate development industry, one of whom shall be a member of the staff of the department of highways and one of whom shall be a representative of agricultural interests.

The division of fisheries and wildlife shall, at least sixty days prior to filing such regulations under the provisions of section five of chapter thirty A, file such regulations with the clerk of the house of representatives who shall forward such regulations to the joint committee on natural resources and agriculture for its review at least sixty days prior to the effective date of said regulations. Said regulations shall include, but not be limited to: criteria to be applied by the director in determining which activities will reduce the viability of significant habitat to support endangered or threatened species; criteria to further define alteration of a significant habitat; and other regulations designed to carry out the purposes of this chapter. This provision shall not affect existing regulations listing endangered, threatened or special concern species in effect on the effective date of this chapter.

All agencies, departments, boards, commissions and authorities shall utilize their authorities in furtherance of the purposes of this chapter and shall review, evaluate and determine the impact on endangered, threatened and special concern species of all works, projects or activities conducted by them and shall use all practicable means and measures to avoid or minimize damage to such species.